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Upon the conclusion of World War II the victors rounded up and prosecuted many German and Japanese war criminals. Some were sentenced to death and executed. The case of William Joyce (‘Lord Haw Haw’)[i] is particularly pertinent as he was a US-born British citizen who moved to Germany and became a naturalised German. Despite this, he was prosecuted for treason and hanged on January 34, 1946.
The other key point is that (as far as I know) no Australians were prosecuted or convicted of war crimes in that conflict[ii]. The same applies to all other conflicts, from the Great War up to, but not including, Afghanistan. Is our latest war an aberration, or has something has happened that has led to the besmirching of the reputations of our front-line combat soldiers[iii]? These are the men and women who put their lives at risk when such service is demanded. If the state and its military and political leaders consider it an obligation to prosecute their own troops for actions taken on the battlefield, rather than support and protect them, why would anyone in future sign up to fight for such a country?
First published in 2020, this essay is
reprised in light of the result of
Ben Roberts-Smith’s defamation trial
Today’s politicians and the current and recent crop of deskbound senior ADF brass (almost none of whom have been in combat) are opening a war crimes Pandora’s Box with their investigations into potential crimes committed in Afghanistan, the outcome of which they cannot determine. These corridor guerrillas and members of the Cardigan Corps apparently fail to realise that if any ‘crimes’ are indeed found to have been committed, and their soldiers are convicted, this will necessarily implicate and involve them too. This is because our political elites signed international conventions and laws of war that could well lead — should lead — to the prosecution of the witch-hunters themselves.
Post-Combat Reviews
When the impressively named IGADF (Inspector-General of the Australian Defence Force) investigation report is finally released it will be interesting to find out when the first ‘war crime’ allegedly occurred, 55 ‘crimes’ being the rumoured number of cases. For arguments sake, let’s say these alleged war crimes go right back over the whole period of our Afghanistan involvement. Are we to believe that every senior officer from the Chief of the Defence Force down was totally unaware of these allegations for eleven straight years? Bear that key question in mind; we will return to it later.
Journalist Chris Masters seems to have been a major instigator of the idea that our combat soldiers were ‘fighting dirty’ and executing unarmed civilians. Let me quote just two extracts that indicate the quality and objectivity of his book. His words are in Italics:
The ABC’s 4Corners’ allegation quotes Master’s book that ‘… the unarmed businessman was dragged behind a pile of planks and executed’ [P.403-404]. Masters does concede that ‘… the witnesses interviewed for the 4Corners report had not actually seen the shooting’. Apparently there is neither reason to qualify the account of an admitted non-witness nor to add explanatory comment.
Can the IGADF ignore this bodice-ripper of a tale from page 545?
Friends of friends overheard gossip at parties of Afghan males without weapons dead in fields – and far worse. Ahead of the squall of prospective war crimes was a general alert about Special Forces acting as a law unto itself. (author’s emphasis)
Do we need any more evidence that cocktail party chatter to justify disbanding and prosecuting what Masters describes as this ‘narrow cohort now largely disconnected from the broad community’?
Whatever the trigger, the ABC, some of the media and the perpetually upset and aggrieved have succeeded in instigating this investigation into the actions of our soldiers in Afghanistan. What is striking about this is that it clearly indicates we sent our nicest soldiers to Iraq, Timor Leste, Vietnam, Malaysia, Korea, both World Wars and all the UN peacekeeping missions. Yet it seems only our most evil ruffians served in Afghanistan. How plausible is it that our soldiers only committed crimes in Afghanistan and none in Iraq or elsewhere?
Assault of the PC skirmishers
The list of politicians and senior Army officers lining up to support this investigation contains not just the usual suspects of non-combatant generals, politicians, lawyers and perennial complainers, but some who served in these combat units. So let me reiterate: when real evidence is clearly identified I do not excuse war crimes. For instance, it is irrefutable that the much eulogised Lt. Harry ‘Breaker’ Morant was indeed a war criminal who cold-bloodedly murdered prisoners. By the British Army laws of the day he was dealt with fairly by the court and executed. Forget any posthumous pardon.
In fact, in regard to Afghanistan, the word is that several soldiers have indeed confessed to killing civilians and prisoners in Afghanistan. They should not be cut any deals. These criminals should be dealt with severely and given very long prison sentences, according to our laws. We also need to know the chain of command and why these incidents went unreported for years. Negligence? Cover-up? Incompetence? Lack of leadership? Take your pick, or add more options, but none I can think of is inspiring.
Australian Compliance with International Laws
Which brings me to the most important point; the application of the international laws of war to which Australia is a signatory. I am not a lawyer, nor an expert in this area, but it appears to me that there are three particular laws that apply:
1/ The Nuremberg Trials Laws / Conventions;[iv]
2/ The Third Geneva Convention for the Treatment of Detainees and Prisoners of War;[v] and
3/ The Yamashita Standard.[vi]
The Nuremberg Trials
In 1945, the victors commenced criminal proceedings against senior Nazis accused of having instigated aggression, or committed crimes against the populations of the countries they invaded. The curious issue is that some of the prosecutions dealt with crimes thought up in retrospect as they did not exist before the war.
Alfred Jodl was the Chief of Operations for the German High Command and was active in planning the attacks against Norway, Holland, Poland, Greece, Yugoslavia, and Russia. He was responsible for the elimination of the Soviet commissars, but used the defense of ‘superior orders’, prohibited by Article 8 of the Charter as a defense.[vii]
As Chief of Operations it was the job of Jodl and his Staff to do precisely what he was convicted of doing: plan strategic military operations against other countries as directed by his government. How many governments today are planning (and even carrying out) wars of aggression? I can name a dozen with ease. So why is The Hague not brimful of cases in need of judging? The ADF, for all Afghanistan cases, disallowed the ‘only following orders’ defence.[viii]
The Third Geneva Convention and the Treatment of Detainees
The appropriate part of the Convention states:
… persons deprived of liberty for reasons related to the conflict must also be treated humanely in all circumstances. In particular, they are protected against murder, torture, as well as cruel, humiliating or degrading treatment.[ix]
There appear to be confessions of some maltreatment, but again the question arises: was this going on for the eleven years of our commitment to Afghanistan, or is it a recent series of events in just the final years? We will have to await the IGADF report to find out. If the worst whispers we hear reflect what happened, it is not just the ‘abusers’ but their negligent or complicit commanders who must also be prosecuted.
The Yamashita Standard
I can only conclude that those who commissioned this enquiry are apparently unaware of, or do not understand the Yamashita Standard, which is enshrined in international law and has been accepted by 
Australia as applicable to our military. Firstly, let me provide a little history on the disgraceful show trial that convicted General Yamashita.
General Yamashita (left), the ‘Tiger of Malaysia’ was hanged on February 23, 1946, for crimes committed by his soldiers in the defence of the Philippines. It is important to note that Yamashita was not accused of personally committing any crime, nor could it be proven that he even knew of the atrocities committed by any of the 360,000 soldiers under his command. Yamashita took command of 14th Army only 10-days before the American invasion. Yet, after the war ended MacArthur had him court-martialled for ‘failing in his duty as commander of the Japanese forces’ by not preventing massacres of civilians in Manila. His defence lawyer, Col. Harry E. Clark, Sr. argued that Yamashita
… is not charged with having done something, but simply with having been the commander. American jurisprudence recognises no such principle so far as military personnel are concerned.
The key point:
No one would even suggest that the commanding general of an American occupation force becomes a criminal every time an American soldier violates the law.’ (author’s emphasis)
Due to a lack of communications capability, Yamashita did not have effective control of his army from the time he arrived to take command. The American landings quickly broke the 14th Army into three separate areas. When the war ended, Yamashita surrendered the Shobu Group in northern Luzon, but was convicted of the crimes committed by the independent Shimbu Group in Manila. The US Supreme Court upheld the decision (7-2) that
a commander can be held accountable for crimes committed by his troops even if he did not order them, did not know about them or did not have the means to stop them.
I find this principle totally illogical but wonderfully useful for my purposes! Read the following twice and very carefully as it is the essence of this article. The Yamashita Standard states that:
The highest ranking officer is accountable for, and should be prosecuted and convicted of the crimes of every officer and soldier under his command, even if he/she is unaware of that the crime, or was aware and actually gave orders to stop it. Ignorance of the actions of his/her subordinates and failed attempts to stop them are not a defence.[x]
Well, that seems clear. Find any soldier who committed a war crime during the eleven years our Army was in Afghanistan and the most senior commander in Afghanistan at that time (and probably right up the hierarchy to the Chief of the Defence Force) is just as guilty as the soldier. Got that?
War is a nasty, brutal business. Yet what we now have are Australian politicians, socially conscious ‘pseudo-generals’, media pundits and lawyers poring over every contact and shot and incident of unintended collateral unintended damage, actively looking for crimes committed by our troops. As Beria told Stalin, ‘Show me the man and I will show you the crime’.
But let’s have a look at the implications of this inquiry that is seeking testimony from insurgents, beheaders, murderers, innocent farmers and those claiming both innocence and damage. Firstly, how do you categorise friend, foe and which is which? After all, several Australians were killed in ‘Green-on-Blue’ attacks (where Afghans on ‘our’ side murdered Australian soldiers).
This bizarre doctrine of ‘command accountability’ has now been added to the Geneva Convention as the Yamashita Standard and adopted by the International Criminal Court in 2002. Australia is a signatory to this convention and our generals are therefore subject to the Yamashita Standard for any and all actions – and crimes – committed by any soldier under their command. It was applied and used to convict many of military leaders in the recent Balkan War prosecutions. In fact, in 2017 at the International War Crimes Court in The Hague, Croatian General Slobodan Praljak was convicted of war crimes during the Balkans War and was sentenced to 20-years imprisonment. He shouted ‘I am not guilty of war crimes’ drank poison and fell dead.[xi]
Remember the ‘Jedi Council’[xii] fiasco in Australia in which the Yamashita Standard was not applied? What’s that catchy cliché? Ah yes, ‘The standard you walk past is the standard you accept’. Yet junior officers were scapegoated and their lives and careers destroyed even though some had not taken part. Meanwhile, their senior officers were not held accountable, as they should have been.
It appears that our current clique of Army generals is ignoring this cliché and the impacts the Yamashita Standard could have on them as they wish to prosecute some of our frontline combat soldiers for potential war crimes. These are the rabbits leading the warrior lions who put their lives on the line as their government directs. It was bad enough when they were merely failing to support their soldiers from slanders and unsubstantiated allegations, but now they have individually or collectively taken proactive action to ask the enemies that we, as a nation asked our soldiers to fight and kill, if they know of any ‘crimes’ committed by Australian soldiers on the battlefield.[xiii]
This raises a whole series of pertinent questions about the fitness of our current crop of generals to lead or command soldiers in battle. If you have any doubts about killing your enemies, then a military career is not for you.
In his book Bravo 20, about a disastrous SASR patrol in Iraq, Andy McNab tells of his patrol being spotted by a shepherd and a bulldozer driver. They let both go and, as a result, the patrol was soon being hunted by Iraqi soldiers. One of their number is killed, two die of hypothermia, only one escapes and the rest are captured.
Question: from the comfort of your armchair would it have been a war crime for them to save themselves by killing the shepherd and bulldozer driver, or if it was you, would you prefer to die with a clear conscience?
In the true story book and movie Lone Survivor an American SEAL Team is spotted by a goat-herder. They discuss the option of killing him and making their escape, but eventually decide to let him go and make for the pickup point. They are soon pursued by 100+ jihadis. All but one of the five SEAL’s is killed. Worse, in trying to rescue them a Chinook carrying a relief force of 18 SEALs is shot down and all on board are killed: a total of 22 American dead as a consequence of the very humanitarian decision to let one goatherd live. In the film of the operation, one of the SEALs says “If I kill him and save us I will spend the rest of my life in Leavenworth.” Instead, he was one of those killed by the Taliban. His first child was born after his death.
Question: from the comfort of your armchair, now that the outcome is known, what is the correct decision you would have made?
An extract from a biography on Nancy Wake[xiv] ‘our greatest WW2 heroine’ reads:
The third woman, however, was entirely different. She proudly supported the Nazis … It was unthinkable to release her … That left only one option … Nancy … had no hesitation in making it happen. ‘I am sorry’, she told the woman … ‘You will have to be shot immediately, and I would like you to prepare for that.’ Nancy recalls, ‘I went to organise the firing squad.’ … they [the Maquis] drew the line at executing one of them [a woman] in cold blood, and initially they outright refused to do so. ‘If you don’t. I will, Nancy threatened, and meant it. … they reluctantly agreed. Nancy sat down under tree to have her usual breakfast of stale croissants and coffee … The sounds of shots rang around the forest as the now shattered and naked body of the woman … crashed to the ground where it moved no more. Nancy kept eating her croissant and sipping her coffee. ‘I was not a very nice person’, she says. ‘And it didn’t put me off my breakfast.’
Question: from the comfort of your armchair, did Nancy Wake commit a war crime? Should she be stripped of all her honours and awards and denigrated for her action? What is the decision you would have made?
Summary
Unless our war in Afghanistan is an extraordinarily bizarre aberration surely we cannot stop here? Albert Jacka VC wrote that he had to shoot several prisoners (including wounded ones) as he could not guard them and fend off a new German attack that was being mounted at the same time. Should we strike this self-confessed criminal from the record of heroes? No doubt WW2 should provide legal warriors with an even greater feast of rich gravy before we move on to the post-1945 smorgasbord.
If we can all agree that the Yamashita Standard[xv] will be ruthlessly applied in its entirety then it will probably surprise the reader that I actually wholeheartedly support this travesty. Then again, I see it as probably the best opportunity we will have to clear out and imprison the desk warriors who are no longer focussed on war, but on the 57 varieties of gender, fighting climate change, ethnic and religious diversity, building mythical Pyne-Box submarines, buying the world’s most expensive and ineffectual warplane, etc. We only get to lose one war and investigations such as this are well on the way to helping achieve that outcome.
Oh, what great days when the Iron Law of Unintended Consequences eats its own.
Alistair Pope, a former officer in the Australian Army, is a frequent contributor
Notes
[i] https://en.wikipedia.org/wiki/Lord_Haw-Haw
[ii] https://en.wikipedia.org/wiki/Allied_war_crimes_during_World_War_II#Australia According to historian Mark Johnston, “the killing of unarmed Japanese was common”. The Australian command tried to put pressure on troops to actually take prisoners, but the troops proved reluctant. When prisoners were indeed taken “it often proved difficult to prevent them from killing captured Japanese before they could be interrogated”. According to Johnston, as a consequence of this type of behaviour, “Some Japanese soldiers were almost certainly deterred from surrendering to Australians”.
Major General Paul Cullen indicated that the killing of Japanese prisoners in the PNG campaigns was common. In one instance he recalled during the battle at Gorari “the leading platoon captured five or seven Japanese and moved on to the next battle. The next platoon came along and bayoneted these Japanese.” He also stated that he found the killings understandable, but that it had left him feeling guilty.
[iii] Quadrant No. 543 – Book Review of ‘No Front Line: Australia’s Special Forces at War in Afghanistan’ – by Chris Masters – 2017, 563 pages.
[iv] http://marcuse.faculty.history.ucsb.edu/classes/33d/projects/nurembg/NuremJudgement.htm
[v] https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm
[vi] http://lawofwar.org/command_responsibility.htm
[vii] http://marcuse.faculty.history.ucsb.edu/classes/33d/projects/nurembg/NuremJudgement.htm
[viii] https://rationalwiki.org/wiki/Nuremberg_defense
[ix] https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm
[x] https://www.loc.gov/rr/frd/Military_Law/pdf/Yamashita.pdf (A lengthy report on Yamashita’s Trial by one of MacArthur’s officers) & 21. American Caesar: Douglas MacArthur, 1880-1964 by William Manchester, Arrow Books (1979) ISBN 0 09 90780.
[xi] https://www.youtube.com/watch?v=p9GqDljz5mg & https://en.wikipedia.org/wiki/Slobodan_Praljak
[xii] The ‘Jedi Council’ was a group of ADF officers who received explicit pornographic material from a civilian contractor. Some officers viewed them, but others did not open the emails and deleted them unread. All were convicted and discharged from the Army on the orders of General Morrison – who accepted no accountability as their senior commander.
[xiii] Quadrant No. 543 – Book Review of ‘No Front Line: Australia’s Special Forces at War in Afghanistan’ – by Chris Masters – 2017, 563 pages
[xiv] Nancy Wake: A Biography of our Greatest War Heroine by Peter Fitzsimmons HarperCollins Publishers (2001) ISBN 0 7322 7456.7
[xv] I should mention that our senior officers might wriggle out of their accountability by using the ‘Medina Defence’ as opposed to the honourable option taken by the Croatian General. As the Company Commander of the platoon that carried out the massacre of 546 civilians at My Lai, Captain Medina was charged with ordering the massacre, but his Court Martial negated both the Nuremberg Laws and the Yamashita Standard as not applicable to American soldiers as they had their own Code of Conduct Laws. Apparently the US Army Code of Conduct does not specifically preclude ordering the massacre of men, women, children or babies. He was acquitted and not charged with breaching US Army Regulations. Where there is a way, there is a legal loophole.
Condon Letter to the IGADF on the ‘Brereton Investigation into Alleged War Crimes by Australian Soldiers in Afghanistan’ of October 2020
Bravo, Alistair, and bravo Peter Condon. It has been obvious to serving and recently retired Service personnel that, for many years, many of our senior commanders seem to have been selected more for their willingness to conform to, and promulgate, the latest social engineering fad that arises from the cultural sewer that Australian academia has surrendered to.
Morrison’s disgraceful treatment of the innocent battalion commander in Townsville was beyond shameful. In the same vein, the tri-Service Chiefs of Staff who, without any sign of protest, threw Commodore Kafer under the bus after Minister Steven Smith made his infamous speech about the ADFA sex scandal, blaming Kafer for the long-standing dysfunctional culture at ADFA. That the Army Chiefs had deliberately allowed the rancid Royal Military College Duntroon bastardisation culture to infect ADFA, by insisting – over the protests of the other Services – that the then senior classes of the single-Service Academies be transferred to ADFA, to help indoctrinate the incoming junior class. That worked a treat.
If anyone wonders where our senior officers’ priorities lie, or the political hoops they’re being forced to jump through, take a peek at the official newspapers of the ADF. See for example, https://www.defence.gov.au/news/raafnews/
We’re doomed.
Not quite on topic but relevant, I have become aware of a TV reality show currently on offer in which ‘celebrities’ undergo SAS training. I did not serve in the SAS but I find it disrespectful in the extreme to those who did, that their service should in any way be equated with the self absorbed narcissism of these second rate celebrities. There must be many Australian SAS veterans currently suffering severe PTSD due principally to the neglect of a senior Defence bureaucracy that allowed them to be so misemployed over such a long period.
What a splendid article. As a retired lawyer, I’ve had a bit of difficulty in satisfying myself why it’s wrong to prosecute soldiers serving in the morass of Afghanistan for war crimes for conduct in the field (as distinct from conduct in a place like Abu Ghraib prison). I think it would still be wrong to prosecute the SAS corporals,but fair, if their so-sensitive generals are also charged with war crimes under the Yamashita standard – certainly a standard to be accepted by all and not walked past by any, if the ADF commanders are serious about dealing with war crimes. Enforcing the Yamashita standard is surely no less important as ensuring compliance with the Australian Defence Force guide that bans soldiers from saying ‘him’ and ‘her’ to avoid giving offence to LGBTI persons: https://www.dailytelegraph.com.au/news/nsw/australian-defence-force-guide-bans-soldiers-from-saying-him-and-her-to-avoid-lgbti-offence/news-story/2f1ab6ee4d4285d0da17d2f6186062f2
Although not a retired lawyer, I share your concerns about the rights & wrongs of this situation. It’s manifestly unfair that soldiers should be judged for actions in combat zones by chair-warming civilians. Good article and good commentary: I hate most that MSM will consider that this finding endorses their own disgraceful behaviour.
Him and her and other variances will be addressed as ‘comrade’ as our Marxists benevolently simply an issue they originated.
It was a long time ago and I was still young and my memory is patchy and I’m too lazy to google, but was the Yamashita standard enforced after the massacre at My Lai?
This is a fine but disturbing article that illustrates just how far our political leaders have become estranged from the servicemen we all rely on to keep our country free.
The reason that ADF is so keen to investigate and prosecute our soldiers is because our political class have put those soldiers in grave jeopardy by signing up to the Rome Statute that establishes the International Criminal Court (ICC).
The Statute obliges each state party to look for any possible breach of the laws of war by its troops. When a state party fails to do so the ICC can investigate, prosecute, try and punish those troops and the state party is obliged to hand over its own soldiers to the ICC’s mercy.
The only responsible course for any self-respecting nation is to refuse to sign the Rome Statute and instead rely on the nation’s own laws and service discipline to deal with wayward soldiers. The USA – even under Barack Obama – refused to be a part of the ICC process. Donald Trump, to his credit, has not only refused to go only with it but slapped sanctions on ICC staff who seek to investigate US troops and threatened to prosecute ICC staff who set foot in the US.
The enemies our soldiers encounter on the battlefield in the 21st century belong to organisations which are not parties to the Rome Statute, and whose leaders have no respect whatsoever for the laws of war as the West understands them. By signing up to the Rome Statute we ensure that our soldiers have constantly to second-guess themselves in desperate battlefield situations. Meanwhile our enemies, the people from whom our soldiers are protecting us, are utterly unconstrained in how they act against our troops (and, indeed, against our civilians).
On a minor point: William Joyce, that nasty friend of the Nazis, was never a British subject. He was convicted of treason against the Crown only by the invention (post facto) by the English Attorney-General of a new species of treason – an invention accepted by the English courts.
Salome,
Note xv above states:
“I should mention that our senior officers might wriggle out of their accountability by using the ‘Medina Defence’ as opposed to the honourable option taken by the Croatian General. As the Company Commander of the platoon that carried out the massacre of 546 civilians at My Lai, Captain Medina was charged with ordering the massacre, but his Court Martial negated both the Nuremberg Laws and the Yamashita Standard as not applicable to American soldiers as they had their own Code of Conduct Laws. Apparently the US Army Code of Conduct does not specifically preclude ordering the massacre of men, women, children or babies. He was acquitted and not charged with breaching US Army Regulations. Where there is a way, there is a legal loophole.”
This article was used as the basis of a commentary by Alan Jones on Sky last night. See also Note xii concerning the acceptance of accountability of our senior officers in the ADF.
War is not the picture book story that some might think. It is savage, foul and always dangerous.
When we are fighting an enemy that wears no uniforms, when soldiers are farmers during the day and soldiers at night, when enemy spies are everywhere, it has to be shoot first. The examples provided of not shooting first are egregious. The risk to the force is one goat farmer telling one gunman about one soldier. Rules of engagement have to start with ‘eliminate the enemy and its information networks and protect the force first and foremost’.
Another difference between an irregular war and WW1 is asymmetrical rule books. The farmer soldier would cut your throat while you are drinking in a coffee shop. We should be able to do likewise.
Very dangerous to quote from a Fitz book. The ‘biography’ mayor may not be a reasonable story about Nancy Wake, but is full of technical and historical errors. He has a motor vessel ‘getting up steam’, Montgomery as a Field Marshall in charge of operations in Tunisia; he was not a filed marshal then, it was Alexander; APC’s in the D Day landings, and many more.
Neil,
In these ‘woke’ days isn’t up to Nancy to prove she is not guilty? As in the Monty Python Skit ‘She’s a Witch’ haven’t we reached the point in which it is just the accusation alone that is enough to prove guilt? Can you prove Fitz is wrong in this case or are you promoting the idea that he is wrong elsewhere, so nothing he ever states can be accepted?
Even if you succeed and prove Nancy did not have a prisoner executed, what is the relevance of that minor incident to the propositions that Afghanistan is unlikely to have been an exceptional case and that the Yamashita Standard (to which Australia is a subscriber) must be applied without fear or favour to the most senior ranks in our ADF?
Richard H also makes a very valid point in his comment above as I remember Julie Bishop saying something like “Australia takes its obligations to conventions and treaties very seriously and will strictly adhere to those we have signed” – as she blew another $Billion or two on whatever.
Nancy can’t be guilty of anything. She was not a man.
Thanks, en passant. You’ve exposed me for not reading the footnotes. (Naughty of me, I know.) But Medina was only a captain . . . It would appear that the Yamashita Principle was one of those things invented by the Americans in a fit of moral superiority and as a means of taking as a trophy the head of another enemy general. It is not just illogical, but downright unjust. Perhaps we could stop pretending and save ourselves a lot of time and legal expense by simply putting the entire leadership (field rank and above) of a defeated army up against a wall, because we all know that, with a few notable exceptions, the worst war crimes are always committed by the vanquished. Or were until now.
Yes, the Yamashita Standard presents as a bloody-minded streak of vengeance, wholly without consistency, containing the additional psychological weight of “discouraging the others”. Who would want to be a General/Colonel/Major if this “Standard” was rigorously implemented in a two-way street ? Yet our leaders signed off on it …
>”If you have any doubts about killing your enemies, then a military career is not for you.” [quote from the article above]
No doubts about killing one’s war-time enemies – many doubts about bureaucratic friendly fire from one’s own, however. Trust not.
Putting politics aside, if this sort of behaviour is actually real (and not a concoction), then we have a serious problem on our hands. It would be the result of one thing only – a lack of discipline within the ADF. An undisciplined army falls apart. Perhaps that is the reason many of our veterans are committing suicide; because they are exposed to war without the foundation of a strong and coherent military structure. If this is the case then it seems that the senior commanders should be held accountable.
My nephew completed basic training this year. He was then confined to barracks for weeks (covid of course), along with all the other young men who were barely out of high school, while they waited to begin their employment training. They were allowed to run amok in the barracks during those weeks of confinement. It was a disgrace. So none of this surprises me.
I am a former combat infantry officer who served in SVN and I know that the pressure of combat can lead to acts that the normal populace would consider criminal. Such acts range from disrespect, mental and physical brutality and up to unlawful killing. When they are committed in the heat of battle, the lesser of these types of offences can, and should, be dealt with within the unit and nothing more said. Unlawful killing and severe brutality must be dealt with formally and, if that leads to imprisonment, so be it, albeit with due -perhaps more than normal – weight placed on any extenuating circumstances eg PTSD. These things have happened in the past and will continue to happen. We expect our soldiers to retain their humanity but recognize that incidents will happen from time to time. They are more likely to occur as soldiers become more brutalized, or perhaps I should say callous, over time by the environment in which they are forced to live. And this brings me to the most concerning aspect of this business – the sheer number of alleged incidents. That speaks to an appalling failure of leadership, at all levels particularly among the officer class. Senior ADF leadership, admittedly at the behest of politicians, has egregiously misemployed the Special Forces by deploying them for long and repeated missions that should have been carried out by conventional forces. We have relied far too much on our Special Forces to carry the burden of our global military obligations. No wonder the system has broken down under the neglect of senior commanders more concerned with diversity and quotas than military efficiency. Many commentators are quick to excuse the individual soldier on the basis that the battlefield is a different space in which normal rules should not apply. But it must be remembered that most, if not all, of these incidents came to light because other soldiers recognized them as wrong. That requires huge moral courage because mateship and unit morale and cohesion are paramount in the thinking of most diggers.
A fascinating insight Peter OBrien. I have found it to be very odd how little media coverage has come out of the conflicts Australia has been involved in over the past 2 or 3 decades. Then suddenly we have soldiers being awarded the VC. ‘What the…? What are they doing over there?’ was my first question at the time. We never really found out, and now we are faced with this. It’s almost like a slap in the face to our blissful ignorance.
Your point about over-use of our Special Forces seems correct from a very distant outsider perspective. What is the explanation for this?
pgang, we over-use SF because it is a cheap way of meeting our obligations, rather than providing conventional forces as we did in SVN. It is window dressing. Ultimately wars are won by the use of conventional forces. Guerilla warfare, which we see in Afghanistan, can go on forever. Special Forces can help contain it but they won’t eliminate it. There are vastly more Taliban etc recruits than there are Australian SF soldiers. The Vietnamese waged two long guerilla wars – against the French and against the US backed South Vietnamese but in the end they prevailed because they fought and won conventional land battles. But conventional forces are large and expensive to deploy and maintain. And, when backed by National Service, as they must be for any extended deployment, they are unpopular.
The Yamashita Standard is tantamount to the creation of an absolute liability offence where the accused is liable for the conduct of his or her subordinates regardless of his or her moral responsibility so that it is immaterial that the accused was under a mistaken belief or not.
Mr Pope says that the “Yamashita Standard is enshrined in international law and has been accepted by Australia as applicable to our military” but, as I understand it, that is not completely accurate.
Under Australian law, offences by our Defence Force personnel, both in peacetime and in combat situations (including overseas such as Afghanistan), are dealt with by the Defence Force Discipline Act (1982). A provision of the DFDA incorporates Division 268.115 of the Commonwealth Criminal Code which imposes criminal responsibility upon commanders. This Division 268.115 is word perfect for Article 28 of the Rome Statute of the International Criminal Court, 1998.
Unlike the Yamashita Standard however, these provisions require an element of a guilty mind or mens rea by providing that a military commander either “knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences; and … failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”
The provision continues but you can get the idea.
The upshot of this is that the Yamashita Standard as it pertained to that Japanese general in 1945 does not apply to Australian service men and women in its strict form but as legislated in different terms by our own law.
Usually such military offences, including murder on active service, would be dealt with by way of a general court martial (which is a very judicial and fair system) but I suspect the Commonwealth Attorney General may order any charges arising from the Brereton report and subsequent investigation be heard by a civilian judge and jury (maybe in the Western Australian Supreme Court). That would be a political, public relations decision.
dwilkins: Which is the higher obligation: international laws or our own interpretations?
In the 1980’s I represented a large government owned corporation in a case brought by an international supplier of specialist equipment. The Australian Law set parameters of 1% variance. The international standard set a parameter of 1.5%. The international supplier claimed this was illegal under the GATT that Oz had signed up to, yet our law had been in place since the 1950’s. Despite highly paid QC’s etc, we lost, were fined and obliged to accept a percentage of non-compliant products. Lawyers earned more fees by drafting the amendment to the law.
Secondly, BREXIT is the result of a loss of sovereignty by the UK being forced to accept EU rules that condemn some traditional products – the humble sausage springs to mind.
Having signed up to two insane international standards Oz has made a huge rod with which the globalists will beat us unmercifully – to the cheers of 70% of our political class …
En passant. It’s not a question of which is the higher obligation, (international or Australian law) because Division 268.115 of the Commonwealth Criminal Code is identical to Article 28 of the Rome Statute for the International Criminal Court, 1998.
Regardless of the reporting from Channel Nine and the Federal Court decision, in my mind the good one in all this is still the SAS man and the bad ones are the reporters.
The SAS man denied he did what they say, in the context they have put it, and I’d believe him before these reporters, and why in heavens name are we letting sensation seeking reporters run around making up stories and creating fire out of some smoke anyway, which in a war….is literally everywhere.
We’ve seen what these people did to Cardinal Pell, and what they did in the US to Donald Trump and now of course they’re hell bent on destroying the SAS as the very good, effective force it has always been.
The lead they seem to be taking I think, comes from the US where I read there are newsrooms now advocating that objectivity itself leads to false balance, negates many of their own identities, life experience and cultural contents, keeping them from pursuing truth in their work….and therefore objectivity has to go.
I’d say this must lead to inventing anything, so long as it makes sensational news and makes the reporter feel good and truthful in his or her own mind.
There was a great example of the dilemma soldiers face in Spielberg’s “Saving Private Ryan” , where they captured a grovelling German soldier who pled for his life , they argued (one pulling a pistol on another) about it but decided to let the German go as it would burden their mission , later in the piece he re-appears , and in a rather harrowing scene , kills the Jewish American soldier , who himself was pleading for his life , to no avail . The German walks past the other , cowering (and armed) American soldier who was frozen with fear , and rejoins they fray . The conundrum that a civilised society must face in war . Even knowing that , I’m not sure I could have killed the German earlier either . The armchair Generals and media however, see no grey , when given the opportunity to discredit the military .
ADF doctrinal publications, issued by authority of the CDF and available online, state that ‘Military commanders of all Services and at all levels bear responsibility for ensuring that forces under their control comply with the Laws of Armed Conflict [LOAC] … A commander is also accountable if [he/she] fails to prevent a breach of the LOAC of which [he/she] should have known’.
Further, in coalition operations a primary duty of a ‘national commander’ is to protect ‘national interests’ within ‘national guidelines’. This includes ensuring compliance by Australian forces with LOAC and the Rules of Engagement (ROE), nation-specific directions the issuance of which is a ‘national responsibility’.
Former CDF Admiral Chris Barrie [SMH 19 Dec 2020] summarised this when, asked about the Brereton Report, he stated ‘[that] the purpose of having national command responsibilities in the theatre [of operations] is to make sure that our people are behaving themselves and doing what is right and proper according to the Australian government’s direction.’
In the case of allegations arising from Special Operations Task Group [SOTG] operations in Afghanistan, Major General Brereton reasoned that in exercising ‘national command’ the Commander of JTF633 ‘did not have a sufficient degree of command and control to attract the principle of command responsibility’. This he attributed to the Commander not having operational command over the SOTG, and their headquarters not being adequately positioned ‘organisationally or geographically’.
But there are no exculpatory notes in the ADF doctrinal publications that allow for factors such as physical location, a lack of direct operational authority, or, tellingly, an ‘abandoned curiosity’, or a ‘misplaced trust’.
By way of illustration, compare and contrast Brereton’s conclusion with the testament of Major General John Cantwell, the ‘national commander’ of JTF633 in 2010-11, in his book ‘Exit Wounds’ [2012]: ‘My Australian military and political masters are hypersensitive to any possible misstep or misbehaviour by our troops, so every potentially negative episode, big or small, costs many hours in reports, investigations, and follow-up actions … The hunger for information is insatiable, the microscope constantly focused on every move.’
Cantwell recounts being ordered to return from leave in Australia by then CDF Angus Houston, ‘worried that [an incident involving a drunk soldier and the use of an opiate] might have wider implications’: ‘… this needs your special leadership skills.’
Specifically in relation to SOTG operations Cantwell speaks of the ‘many briefings I will receive in this [the SOTG] compound [the location of the now infamous but remarkably undetectable bar, ‘The Fat Lady’s Arms’], of a secure phone call with the SOTG commander telling him [Cantwell] of a firefight in progress ‘in a mission which I had recently approved’, and of further SOTG visits and briefings.
This is real evidence of a degree of operational oversight, not to say micro-management, by a ‘national commander’ well into a period when there was ‘a growing body of actual and anecdotal evidence … [suggesting] that the personal and professional ethics of some have been deeply compromised’ (Special Operations Commander Major General Jeff Sengelman, quoted in 2016). [For further details see the online APH Report ‘Allegations and inquiries into serious misconduct by Australian troops in Afghanistan 2005–2013’.]
Despite this we are supposed to accept that in the case of SOTG operations in Afghanistan ‘national command responsibility’ was not ‘attracted’.
Ben Robert Smith must be a person of complex character.
Were the allegations against him by one witness true, believed by the court as being on the balance of probabilities true, why would he have risked taking the defamation action in the first place then continuing?
Would it not have been better to await a assumed court martial after the Brereton report’s ‘potentially affected persons’ advised him of the allegations and defend with better success.
He had offers of settlement to fall back on.
If they settled under undisclosed terms then his boss would be far better off financially, but perhaps not he.
The above article places a salutary look at this whole thing.
Recently it was revealed that the subject of the chain of command and obligations on that command is now part of a doctoral dissertation, which presumably has been defended.
Delay in all this will just lead to more servicemen suiciding.
The Taliban have kindly offered to help.
After all they are well versed and skilled in this alleged aspect of war.
Justice delayed is justice denied.
The question remains
Who is next?
Can we apply the Yamashita principle to any crimes done by members of the police force, the government, any civil service organisation ?
A very interesting article and informative comments. As one who often looks for hypocrisy I enjoyed reading the final par; “Oh, what great days when the Iron Law of Unintended Consequences eats its own.”.
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But there is another aspect to this matter. That is the immense disparity between the power of the media and that of the defamed person.
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Because of the financial cost, most of us ordinary folk would have no hope of obtaining redress from our arrogant and wealthy media. Yet still this arrogance leads the Australian media to want yet more protection from defamation actions.
Brian Boru
Great comment. It amazes me that we never seem to read the point you’re making in the media. That’s I suppose because we couldn’t expect our media on the left or the right to say it. But a good media outfit which was balanced and fair would be open to your point.
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There’s highly unlikely to be any fair discussion of the issue you raise in the main stream media. That in itself should be alarming for us all given the power of the media.
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Instead what we get from the media on this issue is how hard it is to be an investigative journalist. And to be fair it can be a very difficult job and at times a dangerous job. And it’s undoubtably a necessary job. But investigative journalists are usually backed up by multi million dollar powerful organisations.
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Contrast the position of an ordinary citizen who gets defamed by the media. You’d be naive to think that never happens at least by mistakes. Perhaps major mistakes which a media company may not want to admit to.
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Of course we’ll never know how many ordinary citizens have been defamed because if they’re smart they’d put up with even substantial damage to their reputations rather than take on the powerful media.
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Why? Because it’s almost impossible for an ordinary citizen to take on the media. Firstly they’re unlikely to have the multi million dollars to cover their legal fees. Secondly they have to endure daily coverage of the trial in the very media they’re taking on. Chances of successfully clearing their name in the court or elsewhere publicly are extraordinarily low. Trying to will probably damage them further.
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So this issue also highlights the almost impossible cost of justice in the courts for the ordinary citizen. It’s actually a scandal in itself. A scandal you’re unlikely to read about in the media especially when the media are respondents to the case in point.
Thank you Alastair. Your contribution is especially welcome, since it comes from someone who has served in our armed forces – although all have a stake in this issue.
From the appearance of the first of the Chris Masters articles, as well as several items from our national broadcaster, it was clear that our most decorated soldier of the current generation was in the sights of quite a few ideological enemies. The latter are characterised by a fixation with the fictional plight of any minority group that suffers any harm, justified or not, at the hands of almost anyone from a western nation.
There seems little doubt that our military forces were especially vulnerable in their actions against insurgents in countries, such as in the Middle East, where conditions obscure hostile activities. Familial and tribal obligations also override negotiated agreements and have continually put our troops at risk. None of this is of interest to those who sought to impugn the actions of Roberts-Smith.
Unfortunately, political developments after the horrors of the last war caused western nations to define a military code prescribing rules of engagement that could not possibly protect forces subsequently fighting insurgents in the Middle East. I, for one, am grateful that our troops have been withdrawn. It is indeed ironic that trying to protect the innocent in such domains proved far too onerous an occupation when subject to Conventions drawn up subsequent to a different war zone.
But – in relation to Yamashita rule – there is little doubt that the senior command which returned war weary veterans to repeated deployments, should share any accusations levelled for war crimes. If we want to insist upon “the law” – “they knew – or SHOULD have known”………what was occurring.
Vicki & et al,
I have just finished reading the David Sabben, MG, MiD book ‘Mentions in Despatches’ (available from dave@sabbenmidbook.com) based on the near 300 daily letters he sent home from his tour as a combat infantry officer in Vietnam with D6RAR in 1966/67. David was a Platoon Commander at the Battle of Long Tan so he is very familiar with up close and personal combat. He describes not only his own patrols, but those commanded in his absence by his Platoon Sergeant and junior NCO’s. He was either in command, or their return to base he received a detailed and immediate debrief. The possibility of any form of crime that would remain unknown to him is infinitesimal. Company and Battalion commanders often deployed with their troops.
So what is different about what happened in Afghanistan. It appears that many officers found they had so much paperwork they had no time for deployments ‘outside the wire’. As for senior officers, we could not risk the bad PR of their being killed or wounded, so it was best for them to earn their medals ‘for leadership in action’ from the safety of Dubai.
It is leadership as redefined for our new, woke army.
Why don’t we just outlaw war itself? Or, pair every military officer in the field with a PC Commissar to monitor and report on the officer’s conduct, like the set-up that Stalin had?
Hi Alistair,
We are indeed in debt to you my dear friend for again reminding or should I say reaffirming our true beliefs and understanding of War!
Today I have again made brief mention of the Yamashita Standard in a LinkedIn post on this very Topic and urged all readers to send an email to both the Defence Minister and also the General of out utter disgust for there pending actions and have taken not of the standard perhaps they may think twice and even better pull their stupid heads in..
The worst thing about Australia’s involvement in Afghanistan is that we were involved at all. The US has become a terrorist state since World War 2, indulging in military actions against independent states across the globe.
Australia had no business in Vietnam, Iraq, Afghanistan or any of the other US inspired conflicts into which our forces have been dragged.
I am disgusted with all politicians who are persuaded, or bullied, into sending our military forces into these conflicts.
I am more disgusted with the cowardly brass hats who then seek to impose some retrospective rules on the behaviour of those brave men who answer the call to arms.